Online justice has arrived in Canada. Darin Thompson gives an update on British Columbia’s Civil Resolution Tribunal
The proposal to create online courts for England and Wales has been well documented in the Civil Justice Council Advisory Group Report on online dispute resolution (ODR), Lord Justice Briggs' Reports on the Civil Courts Structure Review and more recently by a joint paper published by the Ministry of Justice, the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals.
As the online courts initiative moves into development, some stakeholders will continue to monitor the Civil Resolution Tribunal (CRT), an online civil tribunal that began operations in British Columbia (BC), Canada on 13 July 2016. The CRT's design has some strong similarities with the proposed online courts, and could provide insights into the transition toward technology-facilitated justice in England.
Development of the CRT
The CRT evolved from two early online dispute resolution (ODR) pilot projects led by BC's Ministry of Justice. ODR was used by Consumer Protection BC for consumer disputes and by an administrative tribunal, the Property Assessment Appeal Board, for property tax disputes. Both ODR experiments used Modria's ODR platform. Although volumes were relatively low, these pilots produced favourable results and valuable insights.
The BC legislature passed the Civil Resolution Tribunal Act in 2012. The Act authorised the creation of a new, primarily online, administrative tribunal with the jurisdiction to hear small claims and strata (condominium) disputes.
Unlike the online court proposals in England and Wales, the CRT is an administrative tribunal. Some of its processes will integrate with the BC courts and the tribunal's orders will become equivalent to court orders unless they are challenged in court. However, the judiciary did not play a role in the development of the CRT.
Considering these differences, it is difficult to compare levels of institutional influence or support among mainstream justice stakeholders across the BC and UK contexts. In any event, the team who developed the CRT placed a high priority on the needs, interests and preferences of the public and tribunal users rather than on more traditional justice stakeholders. This approach is considered vital to the broader goal of increasing access to justice.
The CRT as a platform
The CRT makes the internet, rather than courthouses, the place where citizens access justice. A BC survey conducted to guide the tribunal's early design work found 92% of respondents were using the internet daily. Another 5% of respondents were using it weekly. While the digital divide remains an important concern with respect to access, this survey data confirmed that mitigation strategies would apply only to a relatively low percentage of users.
Rather than attempt to bridge the digital divide, the CRT offers pathways around it. Tribunal disputants who are unwilling or unable to use technology can use telephone and mail during the dispute resolution process. People are nevertheless encouraged to use the online channels where they can receive faster, more convenient services and discounts on tribunal fees.
The CRT also encourages disputants to use trusted friends and family members for help. The asynchronous nature of the tribunal's processes makes it easier for the less-technologically inclined to receive support from trusted friends and family members, who can provide help after work or on weekends, in any location, including the disputant's home.
All of the CRT's digital services are designed to work on mobile technologies, including tablets and smartphones.
The CRT's cloud-based infrastructure allows the public to engage with an expert system called the Solution Explorer, and file disputes online. The platform also serves as the case management system used by tribunal administrators. Parties entering their dispute information in the public interface are automatically entering it in the case management system as well, saving administrators from having to do this work.
Rather than assume the risks associated with completely scratch-built software, the technology relies on a customised version of Salesforce, a large, stable, regularly updated platform used by governments and other large entities on a licence basis in many countries for case management and customer service.
The licence-based approach to a customized version of the Salesforce platform for administration of justice will enable BC's Ministry of Justice to share the technology with other tribunals across the province's tribunal sector. It can also be adopted by other jurisdictions interested in minimising technology risks by purchasing licences for a customised justice platform on an annual basis rather than attempting to build a robust system from scratch.
CRT dispute resolution processes
An expert system called the Solution Explorer provides the first dispute resolution phase of the CRT. Disputants use the system to diagnose their problems and then to receive specific legal and dispute resolution guidance including self-resolution tools presented in plain English.
A user who is unable to solve a problem using information and tools in the Solution Explorer can apply for formal CRT dispute resolution. The Solution Explorer automatically passes any problems diagnosed by the expert system into the CRT application process to become the basis for the applicant's claims.
Applicants enter their information and answer a series of questions on the tribunal's web platform. Web-based forms change instantly depending on the applicant's circumstances. For example, a natural person will be asked to complete different fields than a corporate entity. Rather than requiring users to sort through multiple forms and fields, the technology adapts forms and fields automatically for them.
Once in the CRT process, parties may be invited to negotiate directly with each other. If this brief process does not result in a full resolution, a facilitator engages with the parties to support further settlement-focused interactions. If the dispute cannot be resolved by agreement, the facilitator works with the parties to ensure their dispute is prepared for an efficient decision-based process.
In the decision process an independent expert tribunal member decides the outcome of any unresolved claims and makes any necessary orders. CRT orders are enforceable as court orders.
CRT dispute resolution processes are detailed in the tribunal's rules. These rules, which have specific applicability to an online tribunal, were drafted with the aim of usability and clarity for users. A public consultation was held to collect public feedback on them before they came into force.
The CRT's phased development
The CRT is implementing its services in phases. It began accepting disputes before its technology platform and supporting processes were entirely complete. This approach is intended to avoid significant and unforeseen technical or operational problems, and is consistent with the agile project methodology followed by the project. To date, the technology has ably handled the tribunal's caseload.
At every phase of development, software and the associated processes have been subjected to regular testing with members of the public. Testing identified numerous opportunities for improvement, which were incorporated as part of the development process before things were finalised or implemented.
Early public use of CRT services
Between 13 July and 14 November, the Solution Explorer expert system accommodated 2,500 user 'explorations'. The system's analytics show the exact numbers of explorations down various pathways, reflecting the problem types and resolution options selected by each user.
Built-in Solution Explorer features have enabled, and indeed encouraged, users to rank self-help tools and information resources. This feedback, along with open text feedback in the system, is reviewed regularly in the CRT's continuous improvement cycle.
The CRT received 130 applications for dispute resolution in its first three months. Over 60 applicants satisfied the tribunal's requirements for providing notice to respondents, resulting in the progression of these disputes to the facilitation phase. The tribunal is currently moving the disputes through facilitation at a reduced speed to avoid unforeseen procedural and technical problems. As implementation progresses, facilitations will begin to move with greater speed.
Technology performance to date
Thanks to the extensive user testing, phased implementation and reliance on a robust platform, there have been no significant technological problems or failures during the early intake of the CRT.
Most questions received from disputants have been about substantive law and the dispute resolution process. Almost none of the questions suggest significant problems with the tribunal's technology.
Only two parties have asked to not use email for tribunal communications. The CRT accommodated both requests.
The proposal for online courts in England and Wales has generated some controversy around the role of lawyers. Lawyers have been participating in the CRT dispute resolution process, even though the Civil Resolution Tribunal Act presumes self-representation for most tribunal disputants.
In some CRT disputes, lawyers are fully representing parties. It seems likely that they are providing advice to clients in many more disputes. There are no restrictions imposed by the Act or the CRT's rules on the assistance lawyers can provide to parties outside of real-time facilitated interactions with the tribunal. Based on the early days of the CRT, lawyers appear to be meeting their clients' needs in the context of an online tribunal.
Negative views about the CRT have not been representative of the entire BC bar. Many lawyers have donated their time on working groups and as Solution Explorer subject matter experts to support the implementation of the new tribunal.
Proponents (as well as opponents) of online courts in England and Wales may be interested to follow the progression of BC's online tribunal, which is now in operation. Thanks to experiences gained through earlier ODR pilot projects, extensive user testing and phased implementation, the CRT has improved and modernised access to justice without suffering any serious setbacks.
Darin Thompson is a lawyer with the Ministry of Justice in British Columbia, Canada. He has helped to initiate multiple projects using ODR and other technologies in the public justice system context. He was also a member of the Canadian delegation to the United Nations Working Group on ODR.
Darin is an adjunct professor, and has co-instructed Legal Information Technology courses at the University of Victoria Faculty of Law and Osgoode Hall Law School.